Scpa 2103 Proceedings

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Submitted By gfreidman
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SCPA 2103 Discovery Proceedings
By: Gary B. Freidman, Esq.1

The Procedural Law Persons Entitled to Institute the Proceeding. Only a fiduciary. SCPA 2103(1). Since the only permissible petitioner is a fiduciary defined in SCPA 103 (21), the proceeding cannot be brought prior to the issuance of letters - either preliminary, temporary or permanent. If there are multiple fiduciaries, any of them is empowered to commence the proceeding, even if out-voted by the majority. Matter of Levine, 189 Misc. 976, 72 N.Y.S.2d 806 (1947). Fiduciaries who refuse to join in the petition should be named as additional respondents. A fiduciary may maintain a discovery proceeding against one of his co-fiduciaries. Matter of Hare, 123 Misc.2d 266, 473 N.Y.S.2d 334 (1984). Where the fiduciary will not commence a proceeding under 2103 or cannot due to a conflict of interest, the Court may issue limited letters of administration (SCPA 702[9]) for the purpose of commencing the proceeding. Matter of Davidson, 177 Misc. 2d 928. Since the statute speaks in terms of an estate, the proceeding may be commenced not only by an executor or administrator, but by a trustee of either a testamentary trust or a lifetime trust, as a trust in included within SCPA 103's definition of an estate. Subject of the Proceeding. The proceeding may be instituted against any person having possession or control or knowledge or information about money or, other personal property or the proceeds or value thereof to which the fiduciary is entitled. [SCPA 2103 (1)]. Not only can a discovery proceeding be used to recover property alleged to belong to an estate but to gain information needed by the fiduciary in the administration of the estate. SCPA 2103 provides that a fiduciary may present a petition, stating upon knowledge or information and belief that personal property as defined or the proceeds or value thereof which…...

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